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More documents have been uncovered (via FOI requests) that show local law enforcement agencies in California have been operating cell phone tower spoofers (stingray devices) in complete secrecy and wholly unregulated.

Sacramento News10 has obtained documents from agencies in San Jose, Oakland, Los Angeles, San Francisco, Sacramento and Alameda County — all of which point to stingray deployment. As has been the case in the past, the devices are acquired with DHS grants and put into use without oversight or guidelines to ensure privacy protections. The stingrays in use are mainly limited to collecting data, but as the ACLU points out, many manufacturers offer devices that also capture content.

Some of these agencies have had these devices for several years now. Documents obtained from the Oakland Police Dept. show the agency has had stingrays in use since at least 2007, citing 21 “stingray arrests” during that year. This is hardly a surprising development as the city has been pushing for a total surveillance network for years now, something that (until very recently) seemed to be more slowed by contractor ineptitude than growing public outrage.

The device manufacturer’s (Harris) troubling non-disclosure agreement (which has been used to keep evidence of stingray usage out of court cases as well as has been deployed as an excuse for not securing warrants) rears its misshapen head again, mentioned both in one obtained document as well as by a spokesperson reached for comment. One document states:

“The Harris (REDACTED) equipment is proprietary and used for surveillance missions,” the agreement reads. “Its capabilities can only be discussed with sworn law enforcement officers, the military or federal government. This equipment’s capabilities are not for public knowledge and are protected under non-disclosure agreements as well as Title 18 USC 2512.”

The Sacramento County Sheriff’s Dept. had this to (not) say when asked about its stingray usage:

“While I am not familiar with what San Jose has said, my understanding is that the acquisition or use of this technology comes with a strict non-disclosure requirement,” said Under sheriff James Lewis in an emailed statement. “Therefore it would be inappropriate for us to comment about any agency that may be using the technology.”

Law enforcement agencies are conveniently choosing to believe a manufacturer’s non-disclosure agreement trumps public interest or even their own protection of citizens’ Fourth Amendment rights.

The devices aren’t cheap, either. Taxpayers are shelling out hundreds of thousands of dollars for these cell tower spoofers, and the agencies acquiring them are doing very little to ensure the money is spent wisely. ACLU’s examination of the documents shows that many of the agencies purchased devices without soliciting bids.

It’s hard to know whether San José or any of the other agencies that have purchased stingray devices are getting good value for their money because the contract was “sole source,” in other words, not put out to competitive bidding. The justification for skirting ordinary bidding processes is that Harris Corporation is the only manufacturer of this kind of device. (We are aware of othersurveillancevendors that manufacture these devices, though a separate Freedom of Information Request we submitted to the Federal Communications Commission suggests that, as of June 2013, the only company to have obtained an equipment authorization from the FCC for this kind of device is Harris.)

With Harris effectively locking the market down, buyers are pretty much ensured prices far higher than the market would bear if opened to competition. (Not that I’m advocating for a robust surveillance device marketplace, but if you’re going to spend taxpayers’ money on products to spy on them, the least you can do is try to get the best value for their money… ) Using federal grants also allows these departments to further avoid public scrutiny of the purchase and use by circumventing the normal acquisition process.

Beyond the obvious Fourth Amendment concerns looms the very real threat of mission creep. These agencies cite combating terrorism when applying for federal funds, but put the devices to use for ordinary law enforcement purposes. The documents cite stingray-related arrests, but since so little is known about the purchase, much less the deployment, there’s really no way to tell how much data and content totally unrelated to criminal investigations has been collected (and held) by these agencies.

Early last year, the news surfaced that the DEA was bypassing Oregon state law by using administrative subpoenas to get around the state’s warrant requirement for drug prescription database access. “Administrative subpoenas” are yet another government tool that allows agencies to seek information that would normally require a warrant, but without the hassle of running it past a judge or even showing probable cause.

For the first time, a federal judge has ruled that patients have a reasonable expectation of privacy in their drug prescription records, and that law enforcement must obtain a warrant in order to search such information…

“This is a victory for privacy and for the constitutional rights of anyone who ever gets drug prescriptions,” said ACLU Staff Attorney Nathan Freed Wessler, who argued the case last month. “The ruling recognizes that confidential medical records are entitled to the full protection of the Fourth Amendment. The court rightly rejected the federal government’s extreme argument that patients give up their privacy rights by receiving medical treatment from doctors and pharmacists.”

As the ruling points out, citizens have long associated privacy with medical treatment, something that has gone hand-in-hand dating back to the 4th century B.C.E. and the origin of the Hippocratic Oath. It also points out the obvious: federal law itself (HIPAA) contains built-in privacy protections. (Hence the form you have to sign, the privacy info sheet you’re handed on every visit, and signs everywhere telling you to stand behind them for the privacy of the patient in front of you.)

The judge’s decision also notes that stripping away this expectation of privacy will have a chilling effect on those seeking medical care, something that could have very adverse effects on the health of people who might avoid seeking treatment because they fear their medical records will be exposed.

As the ACLU notes in its press release, it’s not exactly happy the state of Oregon has chosen to create a centralized database of drug prescriptions, but, if it is going to do so, it has at least chosen to take the privacy of those contained in the database very seriously.

This decision strikes a small blow against the government’s routine abuse of “exceptions” to warrant requirements as well as against its even more routine abuse of the “third party doctrine,” which the DEA actually used to claim that talking to a doctor is no different than dialing a phone. The DEA knows there’s a huge difference between these two “third parties” but applying that knowledge means showing probable cause and getting a judge to sign off on the warrant, two aspects it apparently feels only hampers its War on Drugs.

JURIST Contributing Editor Marjorie Cohn of the Thomas Jefferson School of Law discusses two recent decisions on the constitutionality of the National Security Agency’s (NSA) metadata collection program …

Edward Snowden, who worked for the National Security Agency (NSA), revealed a secret order of the Foreign Intelligence Surveillance Court (FISC), that requires Verizon to produce on an “ongoing daily basis … all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

The government has admitted it collects metadata for all of our telephone communications, but says the data collected does not include the content of the calls.

In response to lawsuits challenging the constitutionality of the program, two federal judges issued dueling opinions about whether it violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Judge Richard J. Leon, of the US District Court for the District of Columbia, held that the metadata program probably constitutes an unconstitutional search and seizure. Judge William H. Pauley III, of the US District Court for the Southern District of New York, determined that it does not violate the Fourth Amendment.

Leon’s Opinion

Leon wrote, “Because the Government can use daily metadata collection to engage in ‘repetitive surreptitious surveillance of a citizen’s private goings on,’ the ‘program implicates the Fourth Amendment each time a government official monitors it.’” The issue is “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. If they do—and a Fourth Amendment search has thus occurred—then the next step of the analysis will be to determine whether such a search is ‘reasonable.’” The first determination is whether a Fourth Amendment “search” has occurred. If so, the second question is whether that search was “reasonable.”

The judicial analyses of both Leon and Pauley turn on their differing interpretations of the 1979 U.S. Supreme Court decision, Smith v. Maryland. In Smith, a robbery victim reported she had received threatening and obscene phone calls from someone who claimed to be the robber. Without obtaining a warrant, the police installed a pen register, which revealed a telephone in the defendant’s home had been used to call the victim. The Supreme Court held that a person has no reasonable expectation of privacy in the numbers dialed from his telephone because he voluntarily transmits them to his phone company.

Leon distinguished Smith from the NSA program, saying that whether a pen register constitutes a “search” is “a far cry from the issue in [the NSA] case.” Leon wrote, “When do present-day circumstances—the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

Then Leon cited the 2012 Supreme Court case of United States v. Jones, in which five justices found that law enforcement’s use of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy. “Significantly,” Leon wrote, “the justices did so without questioning the validity of the Court’s 1983 decision in United States v. Knotts, that the use of a tracking beeper does not constitute a search because ‘[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’” Leon contrasted the short-range, short-term tracking device used in Knotts with the constant month-long surveillance achieved with the GPS device attached to Jones’s car.

Unlike the “highly-limited data collection” in Smith, Leon noted, “[t]he NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!” He called the NSA program “effectively a joint intelligence-gathering operation [between telecom companies and] the Government.”

“[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Leon exclaimed, calling it “the stuff of science fiction.” He cited Justice Scalia’s opinion in Kyllo v. United States, which held the use of a thermal imaging device, that measures heat waste emanating from a house, constitutes a “search.” Justice Scalia was concerned about increasing invasions of privacy occasioned by developing technology.

Leon wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”

Having determined that people have a subjective expectation of privacy in their historical record of telephony metadata, Leon turned to whether that subjective expectation is one that society considers “reasonable.” A “search” must ordinarily be based on individualized suspicion of wrongdoing in order to be “reasonable.” One exception is when there are “special needs,” beyond the need for ordinary law enforcement (such as the need to protect children from drugs).

“To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” Leon wrote. “In effect,” he continued, “the Government urges me to be the first non-FISC judge to sanction such a dragnet.”

Leon stated that fifteen different FISC judges have issued 35 orders authorizing the metadata collection program. But, Leon wrote, FISC Judge Reggie Walton determined the NSA has engaged in “systematic noncompliance” and repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. And Presiding FISC Judge John Bates noted “a substantial misrepresentation [by the government] regarding the scope of a major collection program.”

Significantly, Leon noted that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Pauley’s Opinion

Pauley’s analysis of the Fourth Amendment issue was brief. He explained that prior to the September 11th terrorist attacks, the NSA intercepted seven calls made by hijacker Khalid al-Mihdhar to an al-Qaeda safe house in Yemen. But the overseas signal intelligence capabilities the NSA used could not capture al-Mihdhar’s telephone number identifier; thus, the NSA mistakenly concluded that al-Mihdhar was not in the United States. Pauley wrote: “Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (FBI) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.”

“If plumbed,” Pauley noted, the telephony metadata program “can reveal a rich profile of every individual as well as a comprehensive record of people’s association with one another.” He noted, “the Government acknowledged that since May 2006, it has collected [telephony metadata] for substantially every telephone call in the United States, including calls between the United States and a foreign country and calls entirely within the United States.”

But, unlike Leon, Pauley found Smith v. Maryland controls the NSA case. He quoted Smith: “Telephone users … typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Thus, Pauley wrote, when a person voluntarily gives information to a third party, “he forfeits his right to privacy in the information.”

While Leon’s distinction between Smith and the NSA program turned on the breadth of information collected by the NSA, Pauley opined, “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” And whereas Leon’s detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones court did not overrule Smith.

Leon’s decision is the better-reasoned opinion.

Looking Ahead

This issue is headed to the Court of Appeals. From there, it will likely go the Supreme Court. The high court checked and balanced President George W. Bush when he overstepped his legal authority by establishing military commissions that violated due process, and attempted to deny constitutional habeas corpus to Guantanamo detainees. It remains to be seen whether the court will likewise refuse to cower before President Barack Obama’s claim of unfettered executive authority to conduct dragnet surveillance. If the court allows the NSA to continue its metadata collection, we will reside in what can only be characterized as a police state.

Marjorie Cohn is a Professor of Law at Thomas Jefferson School of Law, past president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her next book, Drones and Targeted Killing, will be published in 2014 by University of California Press.

This one is hardly a surprise, given how many (though not all) courts have ruled concerning searches of computing devices at the border. The government’s general theory is that there is no 4th Amendment right at the border, and thus customs officials can search anything. The argument that they’re trying to prevent “bad stuff” from getting into the country really doesn’t make much sense though. If bad stuff is “on a computer” it could easily be sent digitally across the border with no intervention from a customs official. Furthermore, making border searches of laptops and phones even more troubling is the nature of how information is stored. When we pack for a trip we deliberately choose what to include in our suitcase — so we know what’s coming with us. However, on our electronic devices, we pretty much store absolutely everything. Arguing that these are subject to a full search seems problematic — but many courts have found otherwise.

And, now there’s another one. A judge in NY has dismissed a challenge to the searches brought by the ACLU. The judge, Edward Korman, repeatedly quotes former head of Homeland Security, Michael Chertoff, who now makes money by hyping up the threats the country faces, so it’s not like he’s the most unbiased of folks to be relying on for how important these border searches really are. Judge Korman claims that the defendants have no standing to bring the case in the first place. There is one individual (a PhD. student) who actually had his computer searched, and then some professional organizations who worried about their members having their computers searched. The judge is simply not impressed by their arguments… at all. He notes that Customs and Border Patrol appears to search so few laptops that it’s highly unlikely that any individual will have theirs searched — and thus these groups can’t really allege a likely harm. He points out that it’s wrong to use a declaratory judgment case to address “a claim of alleged injury based on speculation as to conduct which may or may not occur at some unspecified future date.”

As for the one guy, Pascal Abidor, who did have his laptop searched, Judge Korman is also not impressed, noting that he’s not suing over that particular search, but the possibility of future searches. The judge seems a bit perplexed by this decision, but notes that it takes away his ability to get standing:

Abidor could have established standing in this case by adding a cause of action for damages based on his claim that he was subject to an unreasonable search. Such a cause of action would have provided the occasion for a trial or a motion for summary judgment that would have fully developed the record with respect to both the initial quick look search and subsequent forensic search. No such action is alleged.

But, as Judge Korman notes, if he can’t show any real likelihood of future harm, he can’t show standing.

Even after dismissing for lack of standing, the judge decides to take on the issue anyway, and this is where he starts to get really insulting to anyone who thinks that perhaps they should have some privacy rights at the border. He openly mocks the plaintiffs for arguing for the need for a “reasonable suspicion” standard for searches, noting that this bar is so low that it’s not like they’d get much more privacy out if it anyway:

Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources.

He goes on to suggest that since traveling internationally involves going into other countries, these same people would probably have even less privacy over their data, since other countries may be even more willing to search their computers. He even cites the situation of David Miranda having his electronics searched in the UK.

Surely, Pascal Abidor cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bassar al-Assad or Hassan Nasrallah. Indeed, the New York Times recently reported on the saga of David Michael Miranda who was detained for nine hours by British authorities “while on a stop in London’s Heathrow airport during a trip from Germany to Brazil.”

While the judge’s point is correct that other countries are unlikely to protect the privacy of travelers as well, and that means that any information on a laptop may be inherently unsafe, it seems like a bit of a weak copout to argue that since other countries have no respect for your electronic privacy, that the US shouldn’t either.

He goes even further, arguing that because there’s a “special need” at the border to stop bad people, that it’s perfectly fine to ignore things like probable cause or reasonable suspicion — again quoting Michael Chertoff to suggest that border laptop searches have stopped “bad people” from entering the US.

But then he argues that since everyone knows they may be searched at the border, there isn’t really an invasion of privacy:

The invasion of privacy occasioned by such a border search, however, like the search of luggage, briefcases, and even clothing worn by a person entering the United States, is mitigated by other factors….. As Professor LaFave observes, because “the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches.” …. Thus, “[t]he individual traveler determines the time and place of the search by his own actions, and he thus has ample opportunity to diminish the impact of that search by limiting the nature and character of the effects which he brings with him.”… Indeed, because of the large number of laptop computers (close to a million per year) that are lost by travelers–numbers that far exceed the comparative handful of laptops that are searched at the border–the sensible advice to all travelers is to “[t]hink twice about the information you carry on your laptop,” and to ask themselves: “Is it really necessary to have so much information accessible to you on your computer.”

This seems problematic on multiple levels. First, if we go by the idea that there’s less of a privacy violation because you know it’s coming, then that gives the government the right to ignore the 4th Amendment so long as it tells you ahead of time that it’s going to ignore the 4th Amendment. Even the Supreme Court in Smith v. Maryland — the infamous case concerning the 3rd party doctrine — states that such a scenario is ridiculous, and that just because you know that you’re going to be searched, it doesn’t automatically make the search reasonable.

As for the suggestion that you shouldn’t store stuff on your computers, I’m sure that’s great in theory, but I’d like judges to make decisions based in reality. This suggestion is basically “don’t use your computer for what it’s designed for, because we might search it.” That’s not exactly compelling.

Again, given past precedents, and the specific facts of this case, it’s not entirely surprising. That doesn’t mean it’s not disappointing to see yet another middle finger given to the 4th Amendment to close out the year.

Charlottesville, Va., passed a resolution that urged the state of Virginia to adopt a two-year moratorium on drones (which it did), urged both Virginia and the U.S. Congress to prohibit information obtained from the domestic use of drones from being introduced into court, and to preclude the domestic use of drones equipped with “anti-personnel devices, meaning any projectile, chemical, electrical, directed-energy (visible or invisible), or other device designed to harm, incapacitate, or otherwise negatively impact a human being,” and pledged that Charlottesville would “abstain from similar uses with city-owned, leased, or borrowed drones.”

St. Bonifacius, Minn., passed a resolution with the same language as Charlottesville plus a ban on anyone operating a drone “within the airspace of the city,” making a first offense a misdemeanor and a repeat offense a felony.

Evanston, Ill., passed a resolution establishing a two-year moratorium on the use of drones in the city with exceptions for hobby and model aircraft and for non-military research, and making the same recommendations to the state and Congress as Charlottesville and St. Bonifacius.

Northampton, Mass., passed a resolution urging the U.S. government to end its practice of extrajudicial killing with drones, affirming that within the city limits “the navigable airspace for drone aircraft shall not be expanded below the long-established airspace for manned aircraft” and that “landowners subject to state laws and local ordinances have exclusive control of the immediate reaches of the airspace and that no drone aircraft shall have the ‘public right of transit’ through this private property,” and urging the state and Congress and the FAA “to respect legal precedent and constitutional guarantees of privacy, property rights, and local sovereignty in all matters pertaining to drone aircraft and navigable airspace.”

Other cities, towns, and counties should be able to pass similar resolutions. Of course, stronger and more comprehensive resolutions are best. But most people who learned about the four resolutions above just leaned that these four cities had “banned drones” or “passed an anti-drone resolution.” The details are less important in terms of building national momentum against objectionable uses of drones. By including both surveillance and weaponized drones, as all four cities have done, a resolution campaign can find broader support. By including just one issue, a resolution might meet fewer objections. Asking a city just to make recommendations to a state and the nation might also meet less resistance than asking the city to take actions itself. Less can be more.

Localities have a role in national policy. City councilors and members of boards of supervisors take an oath to support the Constitution of the United States. Cities and towns routinely send petitions to Congress for all kinds of requests. This is allowed under Clause 3, Rule XII, Section 819, of the Rules of the House of Representatives. This clause is routinely used to accept petitions from cities, and memorials from states. The same is established in the Jefferson Manual, the rulebook for the House originally written by Thomas Jefferson for the Senate. In 1967, a court in California ruled (Farley v. Healey, 67 Cal.2d 325) that “one of the purposes of local government is to represent its citizens before the Congress, the Legislature, and administrative agencies in matters over which the local government has no power. Even in matters of foreign policy it is not uncommon for local legislative bodies to make their positions known.” Abolitionists passed local resolutions against U.S. policies on slavery. The anti-apartheid movement did the same, as did the nuclear freeze movement, the movement against the PATRIOT Act, the movement in favor of the Kyoto Protocol, etc. No locality is an island. If we become environmentally sustainable, others will ruin our climate. If we ban assault weapons, they’ll arrive at our borders. And if the skies of the United States are filled with drones, it will become ever more difficult for any city or state to keep them out.

How to pass a local resolution: Every city or county is different, but some rules of thumb are applicable. To the extent possible, build understanding of the issues. Invite speakers, screen films, hold conferences. To the extent possible, educate and win over elected officials. Make the case that localities have a responsibility to speak on national issues to represent the interests of local people. Make the case that the time to act is before the problem expands out of control. Most states are considering drone legislation, so refer to that activity in your state. Make clear that you are aware of countless benevolent and harmless uses of drones but that you are prioritizing Constitutional rights and want exceptions made for uses that do not endanger self-governance rather than drones being made the norm and restrictions the exception. The Congressional Research Service says drones are incompatible with the Fourth Amendment. The U.N. Special Rapporteur says drones are making war the norm. If possible, propose the weakest resolution you can, and ask the local government to put it on the agenda for consideration; then propose the strongest possible resolution you dare. You may end up with a compromise, as happened in Charlottesville. Work the local media and public. Pack the meeting(s). Take advantage of every opportunity for the public to speak. Unlike at the state or national levels, you are unlikely to face any organized opposition. Make your most persuasive case, and make a great show of public support. Equate a “No” vote with support for cameras in everyone’s windows and armed drones over picnics. Equate a “Yes” vote with prevention of racial profiling, activist profiling, and the targeting of all sorts of groups that can be recruited into your campaign.

Oregon has passed a law banning weaponized drones in all cases and banning drone use by law enforcement unless they have a warrant, they have probable cause without a warrant, or for search and rescue, or for an emergency, or for studying a crime scene, or for training (and the Fourth Amendment be damned).

Virginia has passed a law banning local and state (but not federal or National Guard) government drone use for two years unless various color-coded alerts are activated or there is a search or rescue operation or for training exercises or for drone-training schools, and strictly banning (for two years) any state or local weaponized drones.

Florida has passed a law banning law enforcement agencies from using drones to gather information unless they think they have some sort of reason to do so (and the Fourth Amendment be damned).

Idaho has passed a law banning drone surveillance “absent reasonable, articulable suspicion of criminal conduct” except in pursuit of marijuana in which case no such suspicion is needed (and the Fourth Amendment be damned).

Illinois has passed a law banning drones except for law enforcement agencies that have a warrant or when the Secretary of Homeland Security shouts “terrorism!” or they are reasonably suspicious it’s needed or are searching for a missing person or are photographing a crime scene or traffic crash scene (and the Fourth Amendment be damned).

Tennessee has passed a law banning law enforcement drones unless the Sec. of Homeland Security shouts “terrorism!” or there’s a warrant or there’s suspicion without a warrant (and the Fourth Amendment be damned).

Texas has passed a law banning the capturing of images with drones except for … too many exceptions to list.

Congressman Grayson passed an amendment to a DHS funding bill banning DHS from using weaponized drones, a step that must be repeated each year for this and other agencies unless a full national or international ban is put in place.

“Today, no telephone in America makes a call without leaving a record with the NSA. Today, no Internet transaction enters or leaves America without passing through the NSA’s hands,” Snowden said in a statement Thursday.

“Our representatives in Congress tell us this is not surveillance. They’re wrong.”

Why is it not surveillance? Feinstein claimed, in direct contradiction to someone who’s seen most of the inner workings of the agency’s programs, that because it doesn’t sweep up communications or names, it isn’t surveillance. Also, she pointed out that surveillance or not, it’s legal. So there.

Maybe Feinstein considers the term “surveillance” to mean something closer to the old school interpretation — shadowy figures in unmarked vans wearing headphones and peering through binoculars.

Of course, this kind of surveillance contained many elements completely eliminated by the combination of the PATRIOT Act, the FISA Amendments Act, and a very charitable reading of the Third Party Doctrine. You know, the sort of stuff those shadowy men used to utilize: warrants, targeted investigations, reasonable suspicion, a grudging working relationship with the Fourth Amendment…

That’s all gone now. The courts have declared that sweeping up business records on millions of Americans is no more a violation of the Fourth Amendment than gathering metadata on a single person. The NSA has warped the definition of “surveillance” just as surely as they’ve warped the definition of “relevant.” The wholesale, untargeted gathering of millions of “transactions” from internet and phone activity doesn’t seem to resemble what anyone might historically think of as “surveillance,” but it’s surveillance nonetheless.

Sure, the NSA may not look at everything it gathers, but it has the capability to do so and it shows no interest in letting any of its dragnets be taken out of commission. The NSA’s defenders downplay the agency’s many intrusions by first playing the “legal” and “oversight” cards and, when those fail to impress, belittle their critics by trotting out condescending statements like, “The NSA isn’t interested in Grandma’s birthday phone call or the cat videos you email to your friends.”

Well, no shit. We’re hardly interested in that, either. We’re not worried about the NSA looking through tons of inane interactions. We know it doesn’t have the time or inclination to do so. We’re more concerned it’s looking at the stuff it finds interesting and amassing databases full of “suspicious” persons by relying on algorithms and keywords — a fallible process that robs everything of context and turns slightly pointed hay into the needles it so desperately needs to justify its existence.

What makes this even more frightening is that the agency then hands this unfiltered, untargeted, massive collection of data off to other agencies, not only in the US but in other countries, subjecting innocent Americans’ data to new algorithms, keywords and mentalities, increasing the possibility of false positives.

But what we’re mainly concerned about is the fact that an agency that claims its doing this to combat terrorism can’t seem to come up with much evidence that its programs are working. The NSA has deprived us of civil liberties while delivering next to nothing in terms of security. Americans have been sold out to a data-hungry beast, and even if it’s not officially “surveillance,” it’s still completely unacceptable.

Today the Third Circuit Court of Appeals ruled that law enforcement agents must obtain a warrant based on probable cause to attach a GPS device to a car and track its movements. The case, United States v. Katzin, is the first in which a federal appeals court has explicitly held that a warrant is required for GPS tracking by police. The ACLU submitted an amicus brief in the case (joined by the ACLU of Pennsylvania, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers) and presented oral argument to the court in March.

In this case, police suspected three brothers, Harry, Mark, and Michael Katzin, of robbing several pharmacies. Without getting a warrant from a judge, FBI agents attached a GPS tracking device to Harry Katzin’s car in order to follow its movements. The government used the GPS device to track the Katzins as they drove to and from another pharmacy, and arrested them as they drove away. Before trial, the Katzins argued that police had violated their Fourth Amendment rights by using the GPS tracker without a warrant, and the district court agreed. Today’s ruling affirms that decision.

Last year, in United States v. Jones, the Supreme Court unanimously held that attaching a GPS tracker to a car to follow its movements is a search under the Fourth Amendment. The Court did not decide whether police need a warrant to conduct such a search, however, and the government argued in this case that an exception to the usual requirement of a warrant should apply. The Third Circuit rejected the government’s arguments, explaining that GPS tracking is a “vastly broader endeavor” than the kinds of limited searches that courts have allowed without warrants. In particular, the court held that the “automobile exception” to the warrant requirement does not apply to GPS tracking. The exception is designed to permit warrantless searches of cars to reveal contraband before the cars can drive away. But, as the court explained, that narrow exception does not “permit [police] to leave behind an ever-watchful electronic sentinel in order to collect future evidence” without judicial oversight.

The court also rejected a second argument made by the government: that the so-called “good faith” exception should permit use of evidence derived from the GPS tracking, even if it violated the Fourth Amendment. Because the GPS tracker was attached to the Katzins’ car before the Supreme Court decided Jones, and before the Third Circuit had addressed the issue, the government argued that FBI agents couldn’t have known that using a GPS device might raise questions under the Fourth Amendment, and therefore they acted in good faith by choosing not to seek a warrant. The court explained that this does not excuse police from the requirement of getting a warrant:

Where an officer decides to take the Fourth Amendment inquiry into his own hands, rather than to seek a warrant from a neutral magistrate — particularly where the law is as far from settled as it was in this case — he acts in a constitutionally reckless fashion. Here, law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice. . . . Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations.

Today’s opinion offers a full-throated defense of the Fourth Amendment, and installs an important safeguard against unjustified government surveillance. As courts around the country consider challenges to warrantless location tracking by police (whether using GPS devices or cellphonesignals), they would do well to follow the Third Circuit’s lead.

In recent weeks, two cert petitions were filed seeking review of whether the Fourth Amendment covers police searches of cellphone records upon arrest.

From mobile phone and GPS tracking to license plate reading and domestic surveillance drones — not to mention recent revelations of widespread abuse of surveillance capabilities by the National Security Agency — these cases and many others highlight major questions that remain unanswered regarding how privacy rights of Americans can co-exist with the use of rapidly evolving technologies.

State and federal law enforcement agencies have wasted no time seizing on gaps and omissions in established legal precedent to justify vast, routine surveillance of the American public which tests Fourth Amendment rights.

On July 30, a petition was filed in Riley v. California challenging a previous ruling in a California appellate court that affirmed the petitioner’s convictions, which stemmed in part from a questionable search of his smartphone in 2009 following a traffic stop for expired license plates. And late last week, the US Department of Justice filed a petition in United States v. Wurie asking for review of a First Circuit Court of Appeals ruling that police needed a warrant to access a suspect’s phone records. Regarding Wurie, the government contends a cell phone is no different from any other item on a suspect at the time of arrest. The search pertaining to Wurie occurred in 2007.

On the surface, the two cases have much in common. But in Riley, the phone in question is a smartphone – a Samsung Instinct M800. In Wurie, the cellphone was a Verizon LG flip-phone incapable of maintaining the breadth of information – including internet searches, email, photos and other media – that a smartphone can store.

As of May, Pew Research Center found that 91 percent of Americans own cellphones, and 61 percent of those cellphones are smartphones.

GPS technology has received more scrutiny from courts than cellphones have in recent years. Last week, the Justice Department appeared before a federal court defending its right to shield legal memos that provide guidance to federal prosecutors and investigators for how to use GPS devices and other surveillance technologies from the public. In a sense, the memos were released upon a Freedom of Information Act request by the American Civil LIberties Union (ACLU), though their contents were heavily redacted.

The memos (read here and here) were legal interpretations of a January 2012 Supreme Court ruling in United States v. Jones in which the court ruled the use of GPS technology to track a car’s movements constitutes a “search” within the parameters of the Fourth Amendment. Upon release of the indecipherable legal memos, the ACLU filed a lawsuit seeking the full, uncensored guidelines.

“While we agree that executive branch lawyers should be able to freely discuss legal theories, once those opinions become official government policy the public has an absolute right to know what they are,” wrote Brian Hauss, legal fellow with the ACLU’s Speech, Privacy and Technology Project. “Otherwise, the government is operating under secret law that makes accountability to the people impossible.”

The ruling in United States v. Jones left many unanswered questions regarding the use of other location-monitoring technologies pertaining to, for example, the tracking of cellphones or the use of license-plate readers – not to mention the use of surveillance drones in the US. In addition, the Jones ruling fell short of even determining whether a warrant is necessary to use GPS devices.

Building on the Jones decision, New Jersey recently became a state ahead of the curve in defining rules for law enforcement and privacy rights in the digital age. The New Jersey Supreme Court ruled in July that state police must have a search warrant before obtaining tracking information from cellphone providers.

“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or internet subscriber records,” Chief Justice Stuart Rabner wrote in the case’s opinion. “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services and stores they visit – but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers and others.”

In June, Montana became the first state to require police to obtain a warrant before tracking a suspect’s cellphone.

In March 2012, the ACLU reviewed records from over 200 local police departments, finding vast, aggressive use of cellphone tracking for emergency and nonemergency uses.

Another ACLU report, released in July of this year, queried around 600 local and state police departments (and other state and federal agencies) via public records requests to assess how these agencies use automatic license plate readers. The civil liberties organization found massive databases of innocent motorists’ location information gleaned through hundreds of millions of “plate reads” by the ubiquitous readers. Data is often stored for an indefinite period of time, revealing just how easy it is for law enforcement – as well as many private companies – to track any license plate with few legal restrictions in place to stop them.

For example, for every one million plates that were read in the state of Maryland in the first half of 2012, 2000 (0.2 percent) were hits, mostly regarding registration or emissions issues. Of those 2000 hits, less than 3 percent (47) were potentially connected to more serious crimes.

In addition, much of this network of readers throughout the nation is in place thanks to a large amount of federal funding – $50 million in the last five years.

Approval of licenses for domestic drones has begun, as RT has reported, even though solid rules for their eventual use in American skies have yet to materialize from either Congress or the Federal Aviation Administration. The FAA expects as many as 30,000 drones in American airspace by 2020.

For now, many local law enforcement agencies are leading the quest for drone-use approval, though requests for commercial drones are mounting. As of February 15, 2013, there were 327 active drone certifications despite there being no regulatory framework in place. However, the FAA did get around to certifying two types of unmanned aircraft for civilian use in the US in late July.

In the meantime, federal government agencies have used drones domestically both out in the open and in secret. The Federal Bureau of Investigation has admitted to already using surveillance drones despite no established law or guidelines for their use. The US Department of Homeland Security has used surveillance-capable drones along the border for years, even allowing other federal agencies to use its fleet to the tune of 250 times in 2012 alone, The New York Times reported.

As more details of the NSA’s Fourth Amendment-abusing surveillance programs continue to be unveiled, it’s been remarkable to watch the verbal and written contortions deployed by supporters to justify each new bit of exposed information.

Some of the most impressive work comes from the pros, ones whose paychecks (either directly or through campaign contributions) rely on the NSA’s continued survival. Every incident of terrorism (especially 9/11) is held up as an example of why we need the NSA. Dozens of theoretically thwarted attacks are pointed to as “evidence” of the NSA’s crucial work. Countless references are made to the legality of the data harvesting. Things are mumbled about “welcoming the debate” or “maintaining a balance between privacy and security.”

When all of that doesn’t seem to be enough, the defenders resort to portraying domestic surveillance opponents as youthful internet dwellers who have gathered more Facebook Likes than public displays of affection.

Those who aren’t actively beholden to these intelligence agencies flail even more wildly, but still use the same rhetorical touchstones: 9/11, security, metadata, personal attacks.

This horrible GO TEAM DOMESTIC SURVEILLANCE! opinion piece at the Seattle Times begins like many others. Columnist Froma Harrop takes us on a ride in the wayback machine, all the way back to 2001.

During the 2001 assault on the World Trade Center, I was trapped in a train under Manhattan for hours. As news of the collapsing towers, the attack on the Pentagon and the crash in Pennsylvania filtered down to the passengers, the conductor kept telling us this tunnel was the safest place we could be. Meanwhile, the tunnels were being searched for explosives.

I recall thinking, here we are in the commercial capital of the most powerful country on earth, with a zillion-dollar defense budget, and we couldn’t see this coming. That’s what the National Security Agency’s massive data-combing program is supposed to do. See the next thing coming, and stop it.

Now, if readers had somehow missed the headline (“Unjustified hysteria over the NSA surveillance programs”), they might be inclined to believe this piece was headed in an anti-NSA direction. After all, the most powerful nation in the world had the NSA’s data-combing operations at its disposal and still couldn’t prevent the attacks. (And it did have the NSA’s data-combing operations at its disposal — even if it was fairly miniscule as compared to today’s globe-spanning monstrosity.)

But Harrop believes this lack of prevention and failure of a “zillion-dollar defense budget” means we should have more of the stuff that didn’t work before.

So hard as I try, I can’t fathom the manic outrage over the idea of a government computer raking through the metadata on Americans’ phone calls and emails. Metadata is about email addresses, numbers called and length of conversation.

And there’s the personal attack. People alarmed or outraged by the extent of the NSA’s programs are “manic.”

The computers don’t look at content — what I say or what is said to me. Where’s the big loss in privacy?

First, you have to accept the premise that metadata is harmless. And if you do that, as Harrop has done, the NSA has a whole raft of acronyms to sell you. Second, you have to believe the NSA doesn’t look at content. It swears it doesn’t. I’d be more inclined to believe the NSA if it would swear on the stack of 20,000 documents currently in the Guardian’s possession.

Harrop, already pretty much completely sold on the NSA’s talking points, then goes on to seek confirmation of her bias.

John Schindler is an expert on intelligence and terrorism at the U.S. Naval War College. He spent a decade with the NSA. Do I understand the basics? I ask him. Pretty much.

Objection. Leading.

And so on. Schindler (a Schindler whose list you’d rather avoid) breaks down the surveillance programs as nothing more than harmless metadata, lawfully collected, queried by analysts in order to save the lives of millions. Nothing out of the ordinary there.

But I bet Harrop is now wishing she hadn’t included this paragraph.

Agencies investigating drug trafficking, cyberattacks and other criminal activity have long complained about being denied access to NSA intelligence data. That’s because their searches are not directly connected to terrorism or foreign spying.

Do you mean agencies other than the DEA and the IRS? There may have been some complaining, but that noise is starting to sound more like cover to me than the legitimate noise of spurned agencies. And those who are still being cut out of the loop (at least as far as we know) are seeking access, in order to hunt down other dangerous individuals — like copyright infringers. The NSA says it doesn’t share this data, but it does. And yet, supporters like Harrop still buy the agency’s statements that it doesn’t view content, just metadata.

Schindler, being the company man that he is, also brings a little internet-denizen-slamming of his own into the conversation.

“[T]he idea of 10,000 NSA agents looking at our pictures of cats and pornography is pure fantasy,” he remarked.

Stupid internet users. Concerned about their cats and porn. Who would even care about their internet usage, metadata, etc.? Not the NSA. It’s more interested in passing around tapes of phone calls from Americans stuck in the Mideast, looking for an intimate moment or two with their significant others. Why bother with porn when you can record someone else’s “sex tapes?”

And there’s so much more. Harrop refers to Glenn Greenwald as “the left-wing journalist flogging heated conspiracy theories” who “routinely hyperventilates against Nancy Pelosi and other Democrats supporting the program” when not devolving into “bursts of self-promotion.”

And it’s not just lefties Harrop thinks are prone to “manic” bouts of anti-NSA “hysteria.” It’s also “extremists” from the other side of political divide. (Take note of this portrayal as it is almost as common as everything listed above.)

Unsurprisingly, the paranoia has attracted allies on the far right.

Yep, it’s only those on the far-left or far-right that are concerned about the NSA. Anyone more centrally-located is perfectly fine with the data harvesting. Odd, though, that Amash’s NSA-defunding amendment would gather so much support from both sides of the aisle. Congress must be full of extremists.

And then… Harrop pushes herself right off the same sort of deep end she spent the preceding paragraphs disparaging.

What holds the hard right-left alliance together is this: They hate Obama.

We’ll just leave that one lying there (much as Harrop does) because if anything doesn’t deserve a response, that insipid, isolated, brain spasm of an assertion certainly doesn’t. Someone could fill an entire comment thread solely attacking the inherent wrongness of that “conclusion,” but you’re not going to find it up here.

Finally, Harrop ties this travesty together with the cheapest, shittiest brand of rhetorical twine.

[T]here’s no way to find the terrorist needle in the haystack of communications without combing through the haystack. After the next terrorist outrage, we won’t be having this discussion. You can be sure of that.

Really, Harrop? Really? We “won’t be having this discussion?” By “outrage,” I assume you mean “attack” and if we’re attacked, then these programs you’re defending haven’t really done anything to make the nation safer. The discussion will be EVERYWHERE. Critics will point out the failure of the programs. People like you will argue that we need more of the same surveillance that failed us any number of times in the past. But I guarantee the last effect a “terrorist outrage” will have is a shutdown of the discussion.

If this is what passes for a “defense” of these programs, then we’re safe to assume the programs are indefensible.

A ruling this week in a United States appeals court means officers of the law can legally and physically track down suspects based off of cell phone data without ever obtaining a warrant.

A 2-1 decision from the United States Court of Appeals for the Fifth Circuit on Tuesday means law enforcement needn’t prove probable cause when asking a telecom company for location data that could be used to pinpoint suspected criminals.

The verdict overturns a ruling made in 2011 by a magistrate judge from Houston, Texas who said federal authorities weren’t able to compel telecoms for 60 days’ worth of cell phone records without a warrant.

Following that ruling from US District Judge Lynn Hughes, the federal government filed an appeal asking the Fifth Circuit to step-in. On Tuesday, justices there overturned Hughes’ decision and said cell phone companies and their customers had no Fourth Amendment protected right to refute the government’s request for information.

A cell subscriber, said the appeals court, “like a telephone user, understands that his cellphone must send a signal to a nearby cell tower in order to wirelessly connect his call.” That data, the court concluded, is thus “clearly a business record” and can be collected by investigators bypassing what would otherwise require a warrant.

“We understand the cell phone users may reasonably want their location information to remain private,” wrote the court. “But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records… or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.”

Had the court ruled otherwise, federal investigators could be told they must show a judge evidence of probable cause to obtain a warrant for location data. Instead, however, the appeals court agreed that only a substantially easier to acquire court order could be used to compel telecoms for that data.

Unlike a search warrant, a court order in such a case only requires authorities to argue there are reasonable grounds that the information is relevant to an investigation.

Privacy advocates attacked Tuesday’s ruling, including George Washington University law professor, who filed an amicus brief in the case opposing the side the appeals court took.

“The opinion is clear that the government can access cell site records without Fourth Amendment oversight,” Kerr told the New York Times this week.

“This decision is a big deal,” Catherine Crump of the American Civil Liberties Union added to the Times. “It’s a big deal and a big blow to Americans’ privacy rights.”

But while the appeals verdict impacts how federal investigations will be conducted for now, recent legislation adopted in two US states have taken the first steps towards installing local laws that limit the ability to collect location data. Both Montana and New Jersey approved legislation in June and July, respectively, saying a search warrant is required by state investigators in order to collect cell phone location data.

Last December, well before the Ed Snowden leaks revealed some information about the FISA court (FISC) and its rulings, we had already noted that the court itself was almost certainly unconstitutional. More recently, we talked about how the fact that all the court’s judges are appointed by the Chief Justice of the Supreme Court means that the court has turned into a rubber stamp made in the image of some of the most “law and order”-minded Chief Justices from the past few decades. Ezra Klein has since expanded on that to discuss the oddity of how current Chief Justice John Roberts is basically the Chief Justice of the Surveillance State, answerable to absolutely no one: “You have exclusive, unaccountable, lifetime power to shape the surveillance state.”

Over the weekend, the NY Times put out a powerful piece discussing how FISC has basically become a shadow Supreme Court, doling out all sorts of important rulings in total secrecy. It rules on cases where it only hears one side, and where there are no appeals, no guarantee that the full story is presented, and involves a bunch of judges who tend to have law enforcement backgrounds before being appointed to the court. In the end, you have a secret court issuing secret rulings by ex-law enforcement officials, allowing their former colleagues ever greater power to spy on everyone.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

[….] Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

As an example of how FISC has basically completely overturned the rules of surveillance in secret, the NY Times reveals the details of some of its thinking, taking a extremely narrow ruling meant to apply in special cases, and turning it into a general rule that has allowed the vast capture of information:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

I don’t care where you come down on the importance of widespread surveillance — I just don’t see how you can possibly square the above interpretation of the law with the 4th Amendment. If “special needs” can be used to justify mass collection of data on just about everyone “just in case” it might stop some sort of terrorist attack, then you no longer have a 4th Amendment. At all.

But, the bigger issue here is just the fact that we have a secret court issuing secret interpretations of the law that have a massive impact on our privacy. This is supposed to be an open democracy. An open democracy doesn’t involve secret courts and secret laws. We have laws that everyone knows, and which the public can discuss and weigh in on through their elected officials. When you set up a secret court, making secret rules with no oversight, and with all of the judges appointed by a single Supreme Court Justice with a particular bias, you no longer have a functioning democracy at all. And that’s downright scary.

This is a point that some Senators have been making for years now, but the leaks from Ed Snowden have really made it that much clearer just how insane the situation is. Earlier, it had seemed like perhaps there was one or two rulings from FISC that had some oddities in the interpretation, and which should probably be revealed to the public. However, the various revelations so far suggest that the issue is much, much bigger, and we have a secret “shadow court” system that is systematically obliterating the 4th Amendment and helping to create and then “legitimize” the vast surveillance state.

The Snowden leaks have shone a number of lights on various bad things within our government, but one thing that they have made abundantly clear is that the FISC needs to go. Whether that means it needs to be opened up, or to have greater oversight, or just be done away with completely, could be up for discussion. But if it remains the way it is, it’s clear that we’ve thrown away our basic democratic principles, and moved towards the same sorts of autocratic regimes with secret courts that the US has always presented itself as being against.

In order to fully appreciate how the revelations of this past week will impact non-Americans based outside of the United States, a little background on the legal framework on how the U.S. foreign intelligence apparatus operates is helpful. The centerpiece of this framework is the Foreign Intelligence Surveillance Act (FISA), enacted in the late 70s. Historically, relying on a national security exception contained in the Wiretap Act, the United States government considered it had no obligation to obtain authorization from a court before intercepting communications for the purpose of national security. This changed in 1972, when the Supreme Court of the United States first held that the Fourth Amendment warrant requirement does apply to surveillance carried out in the name of national security – at least with respect to domestic threats:

Security surveillance is especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillance to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

These words of caution rang true when it was later revealed that the Government’s unauthorized intelligence-gathering activities had included extensive surveillance of journalists, anti-war protestors, dissident groups and even political opponents. The congressional hearings that followed, called the Church Committee, led to what was perhaps the first comprehensive public look at the activities of the National Security Agency–a clandestine intelligence entity that had been colloquially dubbed “No Such Agency” to reflect its unique ability to defy any attempt to document or oversee its activities. Against this backdrop, FISA was passed specifically for the purpose of limiting foreign intelligence activities from being directed at U.S. persons.

While FISA was always generous in the powers it granted U.S. government agencies with respect to the surveillance of foreign agents, a series of amendments beginning with the USA PATRIOT Act and culminating with the FISA Amendment Act, 2008, transformed FISA into the vehicle for mass surveillance it is today. Notably, these amendments, as the U.S. government ultimately interpreted them:

(a) provided a broader set of powers under which various digital service providers were compelled to assist U.S. foreign intelligence agencies in their activities;

(b) removed the need for intelligence agencies to direct their activities at ‘foreign powers’ or ‘agents of foreign powers’ by making any non-U.S. person the legitimate focus of surveillance; and

(c) applied these extra-ordinary powers to a broader set of circumstances by removing the obligation to ensure ‘foreign intelligence’ is a primary objective for their use.

These amendments furnished the United States government with at least two powerful secret legal surveillance powers that have apparently been used by the NSA to conduct broad surveillance of both U.S. and non-U.S. persons:

a business records power (section 215 of the USA PATRIOT Act, codified as 50 USC §1861) under which the U.S. Government can compel production of ‘any tangible thing’ reasonably believed to be relevant to an authorized investigation conducted for the purpose of obtaining foreign intelligence. The government has now confirmed that it has secretly interpreted ‘any tangible thing’ to include ”all call detail records”, and its telephone metadata surveillance program is based on this power; and

a new general acquisition and interception power (section 702 of FISA, codified as 50 USC §1881a) that allows U.S. government agencies to compel access –possibly in real-time – to information from a diverse range of communications and data processing services. This second power has played a central role in populating the PRISM program.

Lots of problems surround the breadth of these powers and the secretive manner by which they have been interpreted. Very few substantive limits are placed on these powers. To make matters worse, these powers are interpreted secretly and are highly and effectively insulated from any adversarial challenge. This permits the government to adopt the most favourable interpretations it can devise, as has been shown in other contexts. The secret and non-adversarial context in which these interpretations are occurring is particularly problematic given the challenges inherent in applying privacy protections to technologically advanced state surveillance techniques.

Of the few existing internal limits FISA places on its powers, most relate to the need to limit exposure of U.S. persons. The only substantive protections that do not relate to this objective include a loose obligation that the powers be employed for foreign intelligence purposes, compatibility with the Fourth Amendment and the fact that both powers are subject to some limited, but highly secretive Judicial and Congressional review. None of these safeguards is highly reassuring, particularly to non-U.S. persons.

Safeguards primarily designed to limit exposure of U.S. persons

To the extent there are limitations placed on these two FISA powers, they are primarily designed to limit the exposure of U.S. persons. The business records power, for example, cannot be directed at U.S. persons solely on the basis of activities protected by the First Amendment. The general acquisition power can only be directed at persons reasonably believed to be located outside the United States and reasonably believed to be non-U.S. persons. A recent leak, however, suggests that the United States Government has secretly interpreted this to require only 51% assurance of foreignness.

The general acquisition power is also subject to general minimization (§1801 (h)) and targeting (§1881a (i)(2)(B)) procedures, which must be approved by FISC. The sole objective of these requirements is to minimize the targeting, collection and retention of private information of U.S. persons. Of course, it remains secret how the specific techniques adopted seek to achieve this. The business records power also includes minimization procedures, but these only relate to minimizing the retention and dissemination of non-public information concerning U.S. persons, not, apparently, its collection (§1861 (g)(2)).

It has become clear over the past several days that the Government and FISC have secretly interpreted these various safeguards in a woefully inadequate manner that fails to achieve even the basic requirement of insulating U.S. persons from their reach. Non-U.S. persons, however, will probably be most concerned by the fact that nothing in FISA or elsewhere in U.S. lawseems to effectivelylimit the extent to which their own online activities are being surveiled.

Next in our Spies Without Borders series, we will examine how the few protections FISA offers to individuals outside the United States provide little or no protection under US law.

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